Third Circuit Upholds Bribery Conviction Despite Narrowed Definition of “Official Act” Under McDonnell
V&E Government Investigations Update, August 14, 2019
Last week, the Third Circuit upheld the conviction of Robert Cordaro, a Lackawanna Pennsylvania County Commissioner, for bribery, extortion, and racketeering despite Cordaro’s claims that the Supreme Court’s holding in McDonnell v. United States decriminalized his conduct. Cordaro was convicted in 2011 for his role in a pay-to-play scheme in which he allegedly received payment and support from engineering firms in exchange for influencing government agencies to contract with the firms on various projects. However, after the Supreme Court’s McDonnell ruling in 2016 limiting the breadth of the federal bribery law, Cordaro filed a habeas petition asserting that he was actually innocent because the actions he took in exchange for payment were not “official acts” under the McDonnell revised definition.
An “official act” requires 1) there to be a question, matter, cause, suit, proceeding or controversy that may be pending or brought before a public official and 2) the public official must make a decision or take an action on the matter, or agree to do so. The Supreme Court in McDonnell determined that simply setting up meetings, hosting events, connecting companies or individuals with other government officials, and promoting products cannot, on its own, be considered an “official act.” An official act need not occur provided that the public official agrees to take such an act.
In Cordaro’s case, the convicted allegedly took multiple large payments from two engineering firms, Acker Associates and Highland Associates, in exchange for agreeing to influence contracts with Lackawanna County for public projects. In person or through intermediaries, Cordaro insinuated that, if paid, he would either allow these engineering firms to keep their current projects, despite supporting an opposing candidate in his election, or facilitate the engineering firms receiving new projects in Lackawanna County. In addition, evidence was presented that Cordaro asked the Chairman of the Board of Directors of the County of Lackawanna Transit System (COLTS) to contact competing firms and request they step aside so Highland Associates would be the only firm considered for a project. At trial, the Chairman admitted that he followed Cordaro’s instruction, shirking federal law requiring COLTS to solicit at least three proposals, and stated Cordaro was “prominent in the negotiation” of COLTS’s contract with Highland for the project.
On habeas petition, Cordaro argued that, had the jury been properly instructed regarding the revised definition of an “official act” pursuant to the McDonnell decision, the jury would have found him innocent. However, the District Court disagreed, declining to find that no reasonable juror would have convicted Cordaro of bribery, racketeering, or extortion with a revised jury instruction.
The Third Circuit agreed there was evidence far beyond Cordaro setting up meetings or hosting events for the engineering firms. The Third Circuit concluded that the engineering firms’ contracts with Lackawanna County constituted a “matter” under the revised definition of an “official act.” Both of the engineering firms had multiple contracts with Lackawanna County, some of which were entered into after Cordaro took office. Entering into a contract was considered by the Third Circuit a “formal exercise of government power that falls within the specific duties of a government official” and thus akin to a lawsuit or administrative hearing rather than a meeting, telephone call, or event. Moreover, there was evidence that Cordaro acted directly in relation to the contracts themselves, including directing the Chairman of COLTS to ask other firms to step aside and participating in the negotiation of a contract, and agreeing to act on contracts if he received support.
Cordaro argued on appeal that because the engineering firms contracted with independent government agencies and not the county itself, his agreements and actions could not be considered a “matter” pending or brought before a public official. However, the Third Circuit disagreed stating that this distinction does not affect whether the contracts were “matters” under McDonnell nor does it affect whether Cordaro acted or agreed to act on the contracts. The Third Circuit posited that perhaps Cordaro “did not mean it when he said he would let Acker Associates keep that existing work because he lacked the authority to do so” but under McDonnell, Cordaro’s agreement to act was sufficient. Ultimately, the Third Circuit concluded that no matter who the ultimate decisionmaker was, there was “ample evidence” that Cordaro “agreed to, could, and did influence who kept and lost contracts with county entities.”
The Third Circuit’s holding in this case suggests that, although McDonnell narrowed the definition of “official acts,” the standard remains sufficiently broad to leave federal bribery enforcement intact. While the Third Circuit followed the definition provided in McDonnell, it still broadly applied the bribery standard to uphold conviction of an individual who did not ultimately have decision-making power and who, in some instances, only agreed to take action in exchange for payment. Although limiting, the “official acts” definition in McDonnell provides ample room for enforcement as to public officials, and companies and individuals who regularly interact with public officials must remain attuned to the emerging contours of the definition of an “official act” and federal bribery law more broadly.
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